LawFont.com

The First Amendment Center has a nice analysis piece on international libel laws and publishing on the internet.

There are a couple of quibbles: the piece notes a number of cases brought against US publishers in a number of jurisdictions, including Australia, and says “In all of these cases, the foreign courts ignored the protections of U.S. libel law and instead applied local law to determine the publishers’ liability.”

If they were referring to the High Court’s decision in Dow Jones v Gutnick, then those proceedings did not touch on liability; it was all about whether Victoria was an appropriate forum in which to sue, applying traditional concepts of private international law (ie forum conveniens, etc). The appeal was from an application to set aside the service of process.

That case also indicated fairly clearly that the plaintiff actually needs to have a reputation worth protecting in order to bring a suit; it wasn’t expressly held, but it is likely that a plaintiff can’t simply pick Australia to sue in because he thinks it’s a softer touch but doesn’t have any reputation to be injured here.

There is also the practical problem: enforcing the judgment. Suing in a plaintiff-friendly jurisdiction is only of direct benefit if the defendant has assets there, or if the judgment so obtained can be enforced in a jurisdiction where the defendant has assets. For companies with assets only in the US, considerations of forum public policy have been used to block recognition and enforcement of foreign damages awards for defamation where the judgment was considered to be ‘incompatible’ with the forum’s (ie US) policy as reflected in first amendment jurisprudence (post-NYT v Sullivan). (I think Berezhovsky was the unlucky plaintiff in that one.)